Dispute Between Gay Couple and Baker Tests Limits of Free Speech

WASHINGTON (CN) – The U.S. Supreme Court will hear oral arguments Tuesday over whether a Colorado baker had a right to decline to make a wedding cake for a gay couple, in a case that pits First Amendment protections against anti-discrimination laws.

In this Tuesday, Nov. 28, 2017, photograph, Charlie Craig and David Mullins are shown in their home in Denver. The Colorado couple is at the core of a legal case that goes before the U.S. Supreme Court for oral arguments on Tuesday, Dec. 5, in which Denver-area baker Jack Phillips cited his Christian faith in refusing to make a cake for the gay couple’s wedding celebration in 2012. (AP Photo/David Zalubowski)

One of the most highly anticipated cases on the Supreme Court’s docket this term, Masterpiece Cakeshop v. Colorado Civil Rights Commission began in 2012, when Charlie Craig and David Mullins walked into Masterpiece Cakeshop in Lakewood, Colo., looking for a cake to celebrate their upcoming wedding.

Because Colorado at the time did not recognize same-sex marriage, Craig and Mullins were to be married in Massachusetts and wanted the cake for a celebration upon their return. But Jack Phillips, a devout Christian who owns Masterpiece Cakeshop with his wife, told Craig and Mullins he would not make a custom wedding cake for them, instead offering the couple a selection of other cakes and baked goods.

Craig and Mullins felt humiliated and went back to their car and cried, Craig told reporters on a press call last week.

“To this day, Dave and I still feel nervous when we go into businesses,” Craig said. “We really have to think hard whether or not we want to disclose that we’re a married couple or if we can even show each other affection because we are still worried we might be denied service for who we are.”

Craig and Mullins eventually brought a complaint before the Colorado Civil Rights Commission, claiming Phillips discriminated against them based on their sexual orientation. An administrative law judge agreed that Phillips broke Colorado’s anti-discrimination law, which was amended in 2007 and 2008 to include sexual orientation.

As a result of the decision, Phillips had to retrain his staff and change the shop’s service policies. Phillips said he effectively stopped making wedding cakes, costing him 40 percent of his family’s income and forcing him to fire employees.

Phillips appealed to the Colorado Court of Appeals, but it upheld the administrative law judge’s ruling. The Colorado Supreme Court declined to hear the case, but the nation’s highest court took an interest and added it to its docket.

Phillips considers himself an artist and Masterpiece “an art gallery of cakes.” He is a Christian and “strives to honor God in all aspects of his life, including how he treats people and runs his business,” according to Phillips’ brief before the U.S. Supreme Court.

Because of this, Phillips says the cakes he meticulously crafts are more than just desserts, but are an endorsement of any celebration at which they are featured. He says he declined to make a cake for Craig and Mullins because it would be a key part of celebrating a same-sex wedding, which he opposes on religious grounds.

“His decisions on whether to design a specific custom cake have never focused on who the customer is, but on what the custom cake will express or celebrate,” Phillips’ brief states. (Emphasis in original.)

The baker argues Colorado’s anti-discrimination law is “one-sided,” favoring people who support same-sex marriage at the expense of those who do not.

“Cake artists who support same-sex marriage may refuse requests to oppose it,” Phillips’ brief states. “But Phillips may not decline requests to support it.”

Phillips argues before the Supreme Court that making a wedding cake is an inherently expressive act and the First Amendment prevents the government from forcing him to endorse a specific message. Therefore, he says the justices should evaluate the claims using strict scrutiny, the highest level of judicial review.

“Hanging in the balance is more than Phillips’ freedom to ply his craft without forfeiting his conscience,” the baker’s brief states. “At stake is his and all like-minded believers’ freedom to live out their religious identity in the public square. The First Amendment promises them that basic liberty.”

Danielle Weatherby, an associate professor at the University of Arkansas School of Law, said the question is a new one for the Supreme Court, even though lower courts have reached mixed decisions on what constitutes an expressive act. While some courts have ruled against wedding vendors like photographers with claims similar to Phillips, others have held acts like tattooing are expressive.

“It’ll remain to be seen whether this type of conduct is an expressive act that, again, falls under the protective umbrella of the First Amendment,” Weatherby said in an interview.

The Colorado Civil Rights Commission argues ruling for Phillips would have numerous undesirable consequences. If the high court finds for Phillips, the commission argues, a baker could refuse to sell a birthday cake to a black person or a photography studio could enforce a “‘No Mexicans” policy.

“If a retail bakery will offer a white, three tiered cake to one customer, it has no constitutional right to refuse to sell the same cake to the next customer because he happens to be African-American, Jewish or gay,” the commission’s brief states.

Beyond Justice Anthony Kennedy being the potential swing vote in the case, Weatherby said the Reagan appointee could play a large role in the case because of how his majority opinion in Obergefell v. Hodges framed marriage as a fundamental right.

“There’s this idea of human dignity as a liberty interest here and when business owners can start turning away clientele based on a protected characteristic it seems to implicate a human dignity interest that the court has at least alluded to in the past,” Weatherby said.

The federal government filed a friend-of-the-court brief supporting Phillips, advocating the court find a line between artists like Phillips and places like hotels or conference centers that do not clearly endorse a specific viewpoint when they rent out a room.

Weatherby said that line could be very hard to draw and could create a “very slippery slope.”

“My concern is that if the court finds in favor of Mr. Phillips, then any business owner who wishes to avoid serving the LGBT population could simply say, well, my service is an expressive act, it’s an art, and kind of use Mr. Phillips’ M.O. here to get a waiver from complying with an anti-discrimination law,” Weatherby said.